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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,

Respondent/Plaintiff-Appellee,

vs.

BENJAMIN EDUWENSUYI,

Petitioner/Defendant-Appellant.

SCWC-16-0000558

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000558; CASE NO. 1DTA-16-00425)

JANUARY 18, 2018

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

The appeal in this case arises from a challenge by 

Benjamin Eduwensuyi to the validity of his waiver of the right 

to testify at trial and the propriety of the conviction that 

ensued. We hold that the record does not support a conclusion 

that Eduwensuyi’s waiver of the right to testify was 

voluntarily, intelligently, and knowingly made. Because the 

Electronically Filed

Supreme Court

SCWC-16-0000558

18-JAN-2018

08:01 AM
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error was not harmless beyond a reasonable doubt, we vacate the 

conviction and remand the case for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

On February 1, 2016, Eduwensuyi was charged by 

complaint in the Honolulu District Court of the First Circuit 

(district court) with operating a vehicle under the influence of 

an intoxicant in violation of Hawaii Revised Statutes (HRS) § 

291E-61(a)(1).1 A bench trial took place on July 11, 2016.2 

Prior to the presentation of evidence, the district court 

advised Eduwensuyi as follows:

THE COURT: . . . I have to advise you that you have a 

right to testify if you choose to do so.

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you also have a right not to testify. 

That’s up to you. I’ll question you further toward the end 

of the trial as to whether or not you want to waive either 

of these rights, to make sure that you’ve been fully 

informed of your rights and to make sure that any decision 

you make is your decision, it’s voluntary, okay. So your 

attorney can give you advice about whether or not you 

should or should not testify, but ultimately, it’s your 

decision. Do you understand that?

 

1 HRS § 291E-61(a)(1) (Supp. 2015) provides as follows:

A person commits the offense of operating a vehicle under 

the influence of an intoxicant if the person operates or 

assumes actual physical control of a vehicle:

(1) While under the influence of alcohol in an amount 

sufficient to impair the person’s normal mental faculties 

or ability to care for the person and guard against 

casualty[.]

2 The Honorable Richard J. Diehl presided over the trial 

proceedings.
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THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay, very well. We can readily proceed 

then.

The State presented the testimony of one witness, 

Officer Jessie Takushi of the Honolulu Police Department. 

Officer Takushi testified that at approximately 4:37 a.m. on 

January 17, 2016, he stopped a vehicle occupied by Eduwensuyi 

for multiple traffic infractions, including crossing a double 

solid yellow line.

According to Officer Takushi, as he was approaching 

Eduwensuyi’s vehicle, he saw Eduwensuyi climbing from the 

driver’s seat into the passenger’s seat. When Officer Takushi 

reached the vehicle, he noticed that there was a different male 

in the driver’s seat and that Eduwensuyi was “kind of laying 

down on the passenger’s side with his feet still in the driver’s 

seat area.”

Officer Takushi testified that he asked Eduwensuyi for 

his driver’s license, registration, and insurance, which 

Eduwensuyi provided. Officer Takushi stated that Eduwensuyi’s 

eyes were red and watery, his speech was slurred, and an odor of 

alcohol emanated from inside the vehicle. At Officer Takushi’s 

request, Eduwensuyi agreed to participate in the standardized 

field sobriety test. According to Officer Takushi, Eduwensuyi 

was unsteady on his feet, he swayed while standing, and he 
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dragged his feet when walking. Officer Takushi acknowledged 

that his report did not mention that Eduwensuyi was swaying 

while standing.

Following Officer Takushi’s testimony, the State 

rested. The defense then informed the district court that it 

would not be presenting evidence, and the following exchange 

occurred:

THE COURT: . . . sir, you do have a right to testify 

if you choose to do so, as I said at the beginning of the 

trial. And if you testify, though, the prosecutor can 

cross-examine you and ask you questions. If you decide not 

to testify, the court -- I can’t hold it against you, nor 

would I, that you are not going to testify. Okay, doesn’t 

mean anything one way or the other to the court. Do you 

understand these rights?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. And have you consulted with 

your attorney about whether or not you wish to testify?

THE DEFENDANT: I like to take a second to do so right 

now, sir.

THE COURT: Pardon me?

THE DEFENDANT: I’d like to take a second right now, 

Your Honor -- . . . -- to do so again.

THE COURT: -- very well.

THE DEFENDANT: Yes, Your Honor.

THE COURT: You have consulted with your attorney?

THE DEFENDANT: Yes.

THE COURT: And do you wish to testify?

THE DEFENDANT: No, I’m not --

THE COURT: Okay.

THE DEFENDANT: -- Your Honor.
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THE COURT: Okay, the court finds that the defendant 

has been advised of his rights, has knowingly, 

intelligently, and voluntarily waived the right to testify 

or not to testify. . . . .

Eduwensuyi then moved for judgment of acquittal, which motion 

the court denied.

The district court found Eduwensuyi guilty of 

operating a vehicle under the influence of an intoxicant in 

violation of HRS § 291E-61(a)(1) and imposed sentence.3 

Eduwensuyi appealed to the Intermediate Court of Appeals (ICA) 

from the district court’s judgment entered on July 11, 2016.

II. ICA PROCEEDINGS

In his opening brief, Eduwensuyi argued that under 

Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293, 1303 

(1995), the district court was required to engage him in a 

colloquy prior to accepting his waiver of the right to testify 

to ensure he was knowingly, voluntarily, and intelligently 

relinquishing his rights. Eduwensuyi contended that the court’s 

Tachibana colloquy was incomplete and defective because the 

court did not advise him that he had a right not to testify and 

that if he wanted to testify no one could prevent him from doing 

 

3 The district court sentenced Eduwensuyi to the following: pay a 

fine and fees totaling $562; submit to a substance abuse assessment and 

obtain recommended treatment; and participate in a 14-hour substance abuse 

rehabilitation program. The district court further ordered that Eduwensuyi’s 

license be revoked for a period of one year.
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so. Because the colloquy was defective, Eduwensuyi maintained,

any waiver by him was not knowing, intelligent, and voluntary.

In addition, Eduwensuyi contended that the court 

failed to engage in a true exchange during the colloquy. 

Eduwensuyi argued that, instead of administering the colloquy in 

segments and asking Eduwensuyi whether he understood each 

advisement, the district court simply recited a litany of 

rights. (Citing State v. Christian, 88 Hawaii 407, 967 P.2d 239 

(1998).) Eduwensuyi added that there was nothing in the record 

to establish that he understood each of his rights or that the 

court had an objective basis for finding that his waiver of the 

right to testify was validly made.

Eduwensuyi further submitted that the district court’s 

violation of the requirements of Tachibana was not harmless 

beyond a reasonable doubt because the record offered no hint as 

to whether his testimony, had he given it, could have 

established reasonable doubt that he operated a vehicle under 

the influence of an intoxicant. Eduwensuyi concluded that, 

because it is inherently uncertain what he would have testified 

to at trial, there is a reasonable possibility that the 

violation of his constitutional right to testify contributed to 

his conviction.
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In its answering brief, the State first addressed 

Eduwensuyi’s contention that the district court failed to engage 

in a true exchange during the Tachibana colloquy. The State 

noted that the court asked Eduwensuyi at the end of both the 

pretrial advisement and the ultimate colloquy whether he 

understood his rights and, in both instances, Eduwensuyi 

responded in the affirmative. The State added that Eduwensuyi 

was also permitted to consult with defense counsel regarding the 

waiver. Hence, the State argued that the court’s exchange with 

Eduwensuyi was sufficient to enable the court to ascertain 

Eduwensuyi’s understanding of the court’s advisements.

Turning to the contents of the pretrial advisement and 

the ultimate colloquy, the State acknowledged that the district 

court’s pretrial advisement was deficient in that the court did 

not advise Eduwensuyi that his decision not to testify could not 

be used against him by the factfinder. The State submitted 

that, because the pretrial advisement is reviewed for actual 

prejudice, the district court could have rectified the error by 

ensuring that Eduwensuyi was fully informed of his rights in the 

ultimate colloquy. The State conceded, however, that “the 

ultimate colloquy was also deficient in some respects” because 

the district court failed to inform Eduwensuyi of two of the 

five basic requirements of Tachibana--namely, that if he wanted
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to testify, no one could prevent him from doing so and that he 

had the right not to testify.

The State further acknowledged that the district 

court’s violation of Tachibana “may not be harmless beyond a 

reasonable doubt given the circumstances in this case” and that

“it is not uncommon for convictions to be vacated as a result of 

deficient Tachibana colloquies.” The State indicated that the 

situation was unfortunate given that the evidence showed that 

Eduwensuyi operated a vehicle under the influence of an 

intoxicant and that the district court failed “to follow the 

simple mandates” of this court’s precedent. The State concluded 

that it “believes the right to testify colloquy was deficient 

and thus a new trial is warranted.”

On June 9, 2017, the ICA entered a summary disposition 

order (SDO).4 In its SDO, the ICA did not reference that the 

State had acknowledged in its answering brief that both the 

district court’s pretrial advisement and the ultimate colloquy 

were deficient because the district court failed to advise

Eduwensuyi of basic information required by Tachibana. The ICA 

also did not mention in its SDO that the State had conceded 

error in the conviction in this case.

 

4 The ICA’s SDO can be found at State v. Eduwensuyi, 140 Hawaii 7, 

395 P.3d 1241 (App. June 9, 2017).
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The ICA determined that, although the district court 

did not advise Eduwensuyi in the ultimate colloquy that no one 

could prevent him from testifying if he wanted to do so, the 

court adequately covered this advisement in the pretrial 

colloquy by advising him that he had a right to testify or not 

to testify and that it was ultimately his decision whether to 

testify. The ICA further found that given the short time 

between the pretrial advisement and the ultimate colloquy,5

Eduwensuyi’s acknowledgment that he understood his rights, and 

Eduwensuyi’s opportunity to further consult with his counsel 

prior to waiving the right to testify, the district court 

satisfied the requirements of Tachibana. The ICA thus concluded 

that Eduwensuyi validly waived the right to testify and 

accordingly affirmed the district court’s judgment. 

III. STANDARD OF REVIEW

The validity of a criminal defendant’s waiver of the 

right to testify is a question of constitutional law reviewed by 

this court under the right/wrong standard. State v. GomezLobato, 130 Hawaii 465, 468-69, 312 P.3d 897, 900-01 (2013).

 

5 The bench trial lasted fifty minutes.
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IV. DISCUSSION

Hawaii law has historically protected both a 

defendant’s right to testify and right not to testify. State v. 

Monteil, 134 Hawaii 361, 369, 341 P.3d 567, 575 (2014). The 

right to testify is guaranteed by the Fifth and Sixth Amendments

to the United States Constitution; parallel provisions contained 

in article I, sections 5, 10, and 14 of the Hawaii Constitution;

and HRS § 801-2. State v. Pomroy, 132 Hawaii 85, 91, 319 P.3d 

1093, 1099 (2014). The right not to testify is protected by the 

United States Constitution’s Fifth Amendment guarantee against 

compelled testimony and the Hawaii Constitution’s counterpart

provision under article I, section 10. Monteil, 134 Hawaii at 

369, 341 P.3d at 575.

A key purpose of the Tachibana colloquy is to protect 

a defendant’s right to testify. Tachibana v. State, 79 Hawaii

226, 236, 900 P.2d 1293, 1303 (1995). In Tachibana, this court 

declared as follows:

Thus, we hold that in order to protect the right to testify 

under the Hawaiʻi Constitution, trial courts must advise 

criminal defendants of their right to testify and must 

obtain an on-the-record waiver of that right in every case 

in which the defendant does not testify.

Id. (footnotes omitted). Hence, trial courts are charged with 

the “serious and weighty responsibility” of ensuring that the 

waiver of the right to testify is a knowing and intelligent 
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decision. Monteil, 134 Hawaii at 371, 341 P.3d at 577 (quoting 

Tachibana, 79 Hawaii at 233, 900 P.2d at 1300).

A defendant’s constitutional right to testify is 

violated when the Tachibana colloquy is inadequate to provide an 

“objective basis” for finding the defendant “knowingly, 

intelligently, and voluntarily” relinquished his or her right to 

testify. State v. Han, 130 Hawaii 83, 91, 306 P.3d 128, 136 

(2013). In determining whether a waiver of the right to testify 

was voluntarily and intelligently made, this court looks to the 

totality of the facts and circumstances of each particular case. 

Id. at 89, 306 P.3d at 134.

A. The Tachibana Colloquy Was Inadequate

In its answering brief to the ICA, the State conceded 

that “the ultimate colloquy was . . . deficient in some 

respects” because, inter alia, “the district court failed to 

inform [Eduwensuyi] . . . that if he wants to testify that no 

one can prevent him from doing so.” The State concluded that it 

“believes the right to testify colloquy was deficient and thus a 

new trial is warranted.” Upon a review of the record and 

applicable law, the State’s concession of error was properly 

made. See Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr. 

1945) (holding that, while a prosecutor’s confession of error is 

“entitled to great weight,” before a conviction is reversed, “it 
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is incumbent upon the appellate court to ascertain first that 

the confession of error is supported by the record and wellfounded in law and to determine that such error is properly 

preserved and prejudicial”).

1. The district court did not advise Eduwensuyi that no one 

could prevent him from testifying.

Under Tachibana, a defendant must be advised, inter 

alia, “that if he [or she] wants to testify that no one can 

prevent him [or her] from doing so.” 79 Hawaiʻi at 236 n.7, 900 

P.2d at 1303 n.7 (alterations in original) (quoting State v. 

Silva, 78 Hawaii 115, 122–23, 890 P.2d 702, 709–10 (App. 1995)). 

This advisement is critical. See, e.g., Pomroy, 132 Hawaiʻi at 

92, 319 P.3d at 1100. The Tachibana colloquy was adopted by

this court as the procedure that would “best protect defendants’ 

rights while maintaining the integrity of the criminal justice 

system.” Tachibana, 79 Hawaiʻi at 234, 900 P.2d at 1301. This 

court recognized that “[m]any defendants are unaware that they 

have a constitutional right to testify which no one, not even 

their lawyer, may take away from them.” Id. (quoting Boyd v. 

United States, 586 A.2d 670, 677 (D.C. 1991)).

In Pomroy, we held that the Tachibana colloquy was 

“defective” in part because the court “did not fully advise [the 

defendant] of his rights.” 132 Hawaiʻi at 92, 319 P.3d at 1100. 

As this court explained,
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Although the district court advised [the defendant] that he 

had the right to testify on his behalf and that if he chose 

to testify, he would be subject to cross-examination by the 

State, the district court did not advise [the defendant]

that he had the right not to testify and that no one can 

prevent him from testifying.

Id. (emphases added). Here, as in Pomroy, the district court 

failed to advise Eduwensuyi that no one could prevent him from 

testifying.6 This error was compounded by the court’s failure to 

inform Eduwensuyi during the ultimate colloquy that the decision 

regarding testifying was his to make. Given that the advisement 

that no one can prevent the defendant from testifying is 

critical and the only Tachibana advisement that emphasizes that 

the waiver of the right to testify must be voluntary, the 

court’s Tachibana colloquy was deficient.7

 

6 The State also properly conceded that the district court did not 

advise Eduwensuyi during the ultimate colloquy that he had a right not to 

testify. See Kogami, 37 Haw. at 175. In Pomroy, this court held that “the 

district court did not advise [the defendant] that he had the right not to 

testify;” the district court merely stated, “If you choose not to testify, I 

cannot hold that against you.” 132 Hawaii at 92, 319 P.3d at 1100. 

Likewise, the district court here advised Eduwensuyi, “If you decide not to

testify, the court -- I can’t hold it against you.” Such an advisement is 

similarly flawed, since telling a defendant “[i]f you decide not to testify” 

is not equivalent to informing the defendant of the constitutional right not 

to testify.

7 The ICA appears to have similarly determined that the ultimate 

colloquy was deficient because it acknowledged that the district court 

neglected to advise Eduwensuyi that no one can prevent him from testifying. 

The ICA instead relied on, inter alia, the pretrial advisement to conclude 

that Eduwensuyi validly waived the right to testify.
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2. The pretrial advisement did not cure the deficiency of the 

ultimate colloquy.

The ICA relied on the pretrial advisement to support 

its conclusion that the ultimate colloquy was adequate. In its 

answering brief, the State conceded that the pretrial advisement 

was deficient because the district court did not advise 

Eduwensuyi that if he decided not to testify, the court as the 

factfinder would not use that decision against him. The State’s 

concession on this point was correct. See Kogami, 37 Haw. at 

175.

In State v. Lewis, this court mandated that trial 

courts administer a pretrial advisement to defendants: 

the trial courts “prior to the start of trial, [shall] (1) 

inform the defendant of his or her personal right to 

testify or not to testify and (2) alert the defendant that, 

if he or she has not testified by the end of the trial, the 

court will briefly question him or her to ensure that the 

decision not to testify is the defendant’s own decision.”

94 Hawaii 292, 297, 12 P.3d 1233, 1238 (2000) (alteration in 

original) (quoting Tachibana, 79 Hawaiʻi at 237 n.9, 900 P.2d at 

1304 n.9). To more fully protect the right not to testify, the

court in Monteil added a third requirement to the pretrial 

advisement. 134 Hawaii at 373, 341 P.3d at 579. There, we held 

that trial courts must also advise defendants during the 

pretrial advisement that their exercise of the right not to 

testify may not be used by the factfinder to decide the case. 

Id. The district court in this case was thus required to inform
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Eduwensuyi during the pretrial advisement that if he decided not 

to testify, that decision would not be used against him. Id. 

The court failed to advise Eduwensuyi accordingly, and therefore 

the pretrial advisement was deficient.

The district court also did not inform Eduwensuyi 

during the pretrial advisement that no one could prevent him 

from testifying. Thus, the pretrial advisement could not cure 

the deficiency of the ultimate colloquy, which likewise omitted 

this information. The ICA nevertheless determined that, while 

the district court neglected to advise Eduwensuyi during the 

ultimate colloquy that no one could prevent him from testifying, 

the court did inform Eduwensuyi during the pretrial advisement 

that the decision whether to testify was ultimately his. 

However, an advisement that the decision whether to testify or 

not to testify is ultimately the defendant’s is not equivalent 

under our precedent to an advisement that no one can prevent the 

defendant from testifying.

In Pomroy, the district court advised the defendant

during the ultimate colloquy, inter alia, that the decision to 

testify “is yours and yours alone.” 132 Hawaii at 92, 319 P.3d 

at 1100. This court determined that the ultimate colloquy was 

defective in part because the district court did not advise 

Pomroy that no one could prevent him from testifying. Id. 
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Similarly, the district court here informed Eduwensuyi during 

the pretrial advisement that his counsel may advise him about 

whether or not to testify but that the decision regarding 

testifying was ultimately his. The court failed, however, to

inform Eduwensuyi during the ultimate colloquy that no one could 

prevent him from testifying. Thus, the “district court 

incompletely followed Tachibana’s directive.” Pomroy, 132 

Hawaii at 92, 319 P.3d at 1100.

3. The ICA’s reasons for concluding that the district court 

satisfied the requirements of Tachibana are flawed.

In concluding that the district court satisfied the 

requirements of Tachibana, the ICA relied upon the fact that 

only a short time elapsed between the district court’s pretrial 

advisement and the ultimate colloquy. However, as discussed 

supra, the pretrial advisement did not include the advisory that 

was absent from the ultimate colloquy--that no one could prevent 

Eduwensuyi from testifying if he wanted to do so.

Additionally, a general assumption that a trial of 

short duration means that the defendant will remember and 

carefully consider what was previously stated in a pretrial 

advisement is not a fact that can be judicially noticed. 

Indeed, the opposite may be true. A trial, especially the 

commencement of the trial, is an event where a defendant may be 
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anxious or nervous and not listening effectively.8 In addition, 

it is questionable that a defendant would extrapolate from what 

the judge actually said--it’s your decision to testify or not to 

testify--to mean something in addition--that no one can prevent 

you from testifying. Further, the ICA’s assumption based on the 

brevity of the trial builds upon a premise that the defendant is 

able to correctly recall a pretrial advisory at the end of 

trial. This assumption treats all defendants alike in terms of 

their ability to understand and recall the initial advisory 

despite differences, for example, in education, proficiency in 

understanding, and courtroom experience. It also does not 

account for what comes in between the pretrial advisement and 

the conclusion of trial: the evidence adduced at trial that may 

affect the defendant’s ability at the time of the ultimate 

colloquy to recall or focus upon a prior advisory. Finally, the 

pretrial advisement notifies the defendant of the right to 

testify or not to testify but states that if the defendant has 

 

8 “A criminal proceeding is, at best, an anxious event for a 

defendant and his family.” Sara K. Sorenson, Treating Defendants as 

Individuals, 78 N.D. L. Rev. 259, 260 (2002). Courts have recognized in 

other contexts that events associated with a criminal accusation can cause a 

defendant to suffer from anxiety. See, e.g., United States v. Henson, 945 

F.2d 430, 438 (1st Cir. 1991) (“[C]onsiderable anxiety normally attends the 

initiation and pendency of criminal charges[.]”); State v. Wasson, 76 Hawaii 

415, 422, 879 P.2d 520, 527 (1994) (citing Barker v. Wingo, 407 U.S. 514, 533 

(1972)) (recognizing that the defendant, like most criminal defendants, 

suffered from anxious moments awaiting trial); Commonwealth v. Leate, 367 

Mass. 689, 694 (1975) (indicating that there is an assortment of pressures 

inherent in the situation where a defendant pleads guilty).
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not testified by the end of trial, the court will question the 

defendant later regarding the decision not to testify. It is 

significant that the defendant is told that the pretrial 

advisement is preliminary in nature and that the subject matter 

will be addressed fully at a later point if the defendant 

chooses not to testify.9

Thus, to assume, as the ICA did, that a pretrial 

advisement can serve as a substitute for deficiencies in the 

ultimate colloquy based on the length of the trial is inherently 

problematic. Instead, a knowing, intelligent, and voluntary 

waiver must be borne out by evaluating the facts and 

circumstances that are evidenced as to the particular defendant, 

Han, 130 Hawaii at 89, 306 P.3d at 134, and not based upon 

general assumptions of what a defendant would recall from a 

pretrial advisement--as deduced from the length of a trial.10

 

9 Further, the purpose of the pretrial advisement is not to make up 

for the inadequacies of the ultimate colloquy. Rather, the pretrial 

advisement was implemented because it would have “the beneficial effect of 

limiting any post-conviction claim that a defendant testified in ignorance of 

his or her right not to testify,” State v. Lewis, 94 Hawaii 292, 297, 12 P.3d 

1233, 1238 (2000), and would lessen the risk that the ultimate colloquy would 

inadvertently affect the defendant’s right not to testify, Tachibana, 79 

Hawaii at 237 n.9, 900 P.2d at 1304 n.9.

10 Our analysis is not meant to indicate that a pretrial colloquy 

cannot be considered as part of the totality of facts and circumstances in an 

evaluation of whether a particular defendant’s waiver was knowing and 

voluntary.
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The ICA also relied on “Eduwensuyi’s acknowledgment of 

his understanding of his rights” at the conclusion of the 

colloquy. However, as discussed, the ultimate colloquy was 

deficient in that the court did not advise Eduwensuyi that no 

one could prevent him from testifying. A defendant’s 

acknowledgment of an understanding of an incomplete colloquy 

cannot serve as a basis for a valid waiver of the right to 

testify. Rather, a knowing, intelligent, and voluntary waiver 

is demonstrated by a showing that the defendant was fully and 

accurately informed in accordance with the requirements of 

Tachibana and that the defendant acknowledged an understanding 

of the advisements given. See Monteil, 134 Hawaii at 371, 341 

P.3d at 577 (“[A] decision by a defendant not to testify should 

be based upon a defendant’s awareness of the ‘relevant 

circumstances and likely consequences’ of such a decision.” 

(quoting Brady v. United States, 397 U.S. 742, 748 (1970))).

Finally, as support for its conclusion that there was 

a valid waiver in this case, the ICA reasoned that Eduwensuyi 

was afforded the opportunity to--and he actually did--consult 

with defense counsel during the ultimate colloquy. However, 

neither the basis of Eduwensuyi’s request to consult with 

counsel during the ultimate colloquy nor the nature of their 

conversation is known. After Eduwensuyi consulted with his 
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counsel, the district court did not ask Eduwensuyi whether he

had any questions regarding his rights to testify and not to 

testify, nor did the court ask whether speaking with counsel 

answered any questions that he might have had regarding those 

rights. Instead, the court simply asked Eduwensuyi whether he 

wished to testify. And based on the negative response from 

Eduwensuyi, the court found a knowing and intelligent waiver of 

that right. Thus, there is nothing in the record that indicates 

that Eduwensuyi’s discussion with counsel enhanced his 

understanding of his constitutional rights, much less rectified

the error in the court’s colloquy.

In addition, it is settled law that the duty to ensure 

that a defendant’s waiver of the right to testify is validly 

made is one that is imparted to a court. “A court has a 

‘serious and weighty responsibility to determine whether’ a 

waiver of the right to testify is a knowing and intelligent 

decision.” Monteil, 134 Hawaii at 371, 341 P.3d at 577 (quoting 

Tachibana, 79 Hawaii at 233, 900 P.2d at 1300). Thus, a court 

may not rely upon an off-the-record discussion between counsel 

and a defendant to establish a valid waiver of a constitutional 

right, and the ICA erred in doing so. Cf. State v. GomezLobato, 130 Hawaii 465, 477-78, 312 P.3d 897, 909-10 (2013) 

(finding waiver of jury trial deficient in part because court 
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should have inquired as to defendant’s understanding of jury 

trial waiver form that was interpreted to him out of court).

Based on the foregoing, the ICA’s reasons for 

concluding that the district court satisfied the requirements of 

Tachibana are flawed and cannot support a finding that 

Eduwensuyi validly waived the right to testify.

B. The Court’s Error Was Not Harmless Beyond A Reasonable Doubt

The State acknowledged in its answering brief that the 

district court’s violation of Tachibana in this case “may not be 

harmless beyond a reasonable doubt given the circumstances,” 

concluding that it “believes the right to testify colloquy was 

deficient and thus a new trial is warranted.” We find that the 

State’s concession on this point was proper. See Kogami, 37 

Haw. at 175. “Once a violation of the constitutional right to 

testify is established, the conviction must be vacated unless 

the State can prove that the violation was harmless beyond a 

reasonable doubt.” Tachibana, 79 Hawaiʻi at 240, 900 P.2d at 

1307 (citations omitted). “The relevant question under the 

harmless beyond a reasonable doubt standard is whether there is 

a reasonable possibility that error might have contributed to 

[the] conviction.” Han, 130 Hawaii at 93, 306 P.3d at 138 

(quoting State v. Schnabel, 127 Hawaii 432, 450, 279 P.3d 1237, 

1255 (2012)).
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Had Eduwensuyi testified, he may have been able to 

contest the State’s case and shed light on whether he operated a 

vehicle under the influence of an intoxicant in violation of HRS 

§ 291E-61(a)(1). On this record, it is not knowable whether 

Eduwensuyi’s testimony would have had any effect on the outcome 

of his case. Pomroy, 132 Hawaii at 94, 319 P.3d at 1102. 

Hence, it is “impossible to conclude” that violating 

Eduwensuyi’s right to testify was harmless beyond a reasonable 

doubt. Tachibana, 79 Hawaii at 240, 900 P.2d at 1307; State v. 

Silva, 78 Hawaii 115, 126, 890 P.2d 702, 713 (App. 1995); 

Pomroy, 132 Hawaii at 94, 319 P.3d at 1102.11 Therefore, 

Eduwensuyi’s conviction must be vacated.

C. The ICA Failed To Give Any Deference To The State’s 

Concessions Of Error

As noted supra, the State conceded in its answering 

brief that the pretrial advisement was deficient because the 

district court did not advise Eduwensuyi that his decision not 

to testify could not be used by the factfinder against him. The 

State also conceded that the ultimate colloquy was deficient 

because “the district court failed to inform [Eduwensuyi] of 2 

of the 5 basic requirements of Tachibana, namely that if he 

 

11 Eduwensuyi also argues that the court did not engage in a true 

colloquy. In light of the disposition in this case, we do not address this 

contention. 
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wants to testify that no one can prevent him from doing so and 

that he has the right not to testify.” The State further 

acknowledged that the district court’s violation of Tachibana

“may not be harmless beyond a reasonable doubt given the 

circumstances in this case” and concluded that it “believes the 

right to testify colloquy was deficient and thus a new trial is 

warranted.”

A prosecutor’s confession, although not binding on an 

appellate court, is “entitled to great weight.” Territory v. 

Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945); see also State v. 

Wasson, 76 Hawaii 415, 418, 879 P.2d 520, 523 (1994) 

(considering the State’s concession and concluding that the 

State properly conceded error); State v. Solomon, 107 Hawaii

117, 127-28, 111 P.3d 12, 22-23 (2005) (recognizing the 

prosecutor’s confession of error and vacating the defendant’s 

conviction and remanding the case for a new change of plea 

hearing). Thus, the ICA was required to consider the State’s 

concessions of error set forth in its answering brief. However, 

nothing in the ICA’s decision indicates that the ICA gave due 

consideration to the State’s concessions in its evaluation of 

the issues presented in this case.12 See Kogami, 37 Haw. at 175; 

 

12 As stated, in Kogami, this court indicated that a prosecutor’s 

confession of error is “entitled to great weight.” 37 Haw. at 175. We note 

(continued . . .)
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Wasson, 76 Hawaii at 418, 879 P.2d at 523; Solomon, 107 Hawaii

at 127, 111 P.3d at 22. 

As discussed, the State’s concessions are supported 

both by the record in this case and applicable legal principles. 

Under our well-settled law, while the ICA was not bound by the 

State’s concessions, the ICA was required to give due 

consideration to them. Nonetheless, in light of the disposition 

reached in this case, we do not consider the effect of the ICA’s 

failure to give the requisite consideration to the State’s 

concessions.

V. CONCLUSION

The Tachibana colloquy was inadequate in that the 

district court did not advise Eduwensuyi during the ultimate 

colloquy that no one could prevent him from testifying. This 

error was not harmless beyond a reasonable doubt. Therefore,

the ICA’s Judgment on Appeal and the district court’s judgment

 

(. . . continued)

that the level of deference that would be accorded to a concession would 

depend on the issue presented. For example, in Kogami, we found that a 

concession relating to the insufficiency of the evidence as to the charged 

violation of a statute was well-founded. Id. However, if the confession of 

error relates to an interpretation of a law, no deference need be given. See

Orloff v. Willoughby, 345 U.S. 83, 87 (1953) (“This Court, of course, is not 

bound to accept the Government’s concession that the courts below erred on a 

question of law.”). Given the manifest deficiency of the Tachibana colloquy 

in this case and because the ICA entirely failed to acknowledge the State’s 

concessions on appeal, we need not address the level of deference that the 

ICA should have accorded to the State’s confessions of error relating to the 

district court’s noncompliance with the Tachibana requirements.
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are vacated, and the case is remanded to the district court for 

further proceedings.

James S. Tabe

for petitioner

Loren J. Thomas

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson